This might be a legal minefield, but it should not be an ethical one.
The ethical point is straightforward – at least as far as the individuals are concerned. Aid workers should not use advantages of power and money to sexually exploit vulnerable people in disaster zones. Neither should the workers themselves be abused and assaulted, either in this country or elsewhere.
As for the organisations – charities whose very purpose is to help vulnerable people - theynow find themselves in the company of the schools, religious institutions and Local Authorities that have been the subject of so many sex abuse scandals in recent years. Judging by the online commentary, the charities have been alert to the problem. For example, Oxfam employed a Global Head of Safeguarding, Helen Evans, between 2012 and 2015. However, she now claims that Oxfam’s Chief Executive, Mark Goldring, failed to act once she raised concerns about widespread abuse involving Oxfam workers.
So yet another previously well respected organisation has had its reputation damaged by a sexual abuse scandal, and when that happens it is easy to feel society’s standards are in terminal decline. However, I would suggest that this is not true and that things are in fact slowly improving.
Fifty years ago sexual abuse scandals were virtually unheard of, but that wasn’t because the abuse wasn’t happening – it was simply because there were little or no procedures in place to prevent it. When it did happen, those in authority either ignored it or failed to acknowledge that it might be happening. Even twenty years ago that was probably still the case.
Nowadays most organisations that work with vulnerable people have safeguarding procedures in place; the Courts and police take allegations very seriously, and within the media the issues are readily debated. Indeed, following the collapse of the investigation into alleged paedophile abuse by high ranking politicians and others in the 1970’s – the “Nick” case - some would suggest that the pendulum has swung too firmly in the opposite direction, and that we are now in danger of abandoning the presumption of innocence.
At Kingsley Napley we advise organisations on safeguarding issues, we represent people who face criminal charges arising from sexual abuse, and we defend people who are facing civil compensation claims arising from sexual abuse. We also act for people who have been the victims of sexual abuse, and conduct claims for compensation.
Coincidentally, I also advise in personal injury compensation claims where there is an international element. That brings me back to the Oxfam case, and my opening comment about how it might be something of a legal minefield. Let us consider the facts:-
Oxfam is a UK charity which operates internationally. As I understand it, its employees are predominately from the UK, but also from other countries. The allegations concern sexual abuse in Haiti and South Sudan, and, more latterly sexual assaults in the UK.
So, if the victims of the sexual abuse in Haiti and South Sudan want to seek compensation for what happened to them, whom should they claim against, and in which country should they bring proceedings? Some of the answers to those questions can be found in the Supreme Court’s 2017 decision in Brownlie v The Four Seasons Holdings, in which I acted for the Claimant.
I would like to say that the law emerging from that case is very clear, but unfortunately it isn’t. However if we ask ourselves what might be a fair and proper approach in a good legal system, I would suggest that the following considerations should apply:-
Q. Did Oxfam owe a duty of care towards the people that it was helping?
A. Yes, irrespective of the fact that Oxfam is a charity providing services that are not paid for.
Q. Was Oxfam responsible for the actions of its workers?
A. Perhaps not without limit, but it should be responsible for any actions connected to work they were doing for Oxfam.
Q. If Oxfam was vicariously liable for its workers would it be able to defend any claim on the basis that it had proper safeguarding measures in place?
A. Yes – Oxfam did not have an absolute duty of care – it just has to show that it took reasonable steps to deal with foreseeable risks.
Q. On the available evidence did Oxfam take all reasonable steps?
A. They had safeguarding procedures, which was a good thing, but evidently they failed to act on them. If that is true it might be difficult for them to argue that they acted reasonably.
Q. Where should the alleged victims from Haiti and Southern Sudan bring their claims?
A. Assuming that the Courts in their countries are not particularly effective due to the economic environment/recent disasters, and given that Oxfam is a UK based institution, I anticipate that the UK Courts would be prepared to consider accepting jurisdiction for any claims.
Q. Can the Oxfam employees who claim they were assaulted by their managers in the UK bring cases for compensation?
A. Yes, and they will be conventional personal injury claims.